Exhibit 10.9
CHANGE IN CONTROL SEVERANCE AGREEMENT
SIMSBURY BANK AND TRUST COMPANY
This Agreement is made and entered into, effective as of the 23rd day of
December, 2005, by and between Simsbury Bank and Trust Company, a state bank and
trust company with its principal office and place of business at 000 Xxxxxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000 ("Bank") and Xxxxx X. Xxxxxxx, a resident of
Simsbury, Connecticut ("Executive").
W I T N E S S E T H:
WHEREAS, Executive is employed by Bank as Senior Vice President and Chief
Retail Banking Officer;
WHEREAS, the Board of Directors of Bank considers it to be in the best
interests of Bank and the stockholders of Bank to xxxxxx the continued
employment of Executive in the event of a Potential Change-in-Control (as
hereinafter defined), although no such event is now contemplated or foreseen;
WHEREAS, Bank desires to assure Executive of what it considers to be fair
and reasonable terms in the event of a Change-in-Control (as hereinafter
defined);
NOW THEREFORE, in consideration of the promises and mutual covenants herein
contained, the parties hereto, intending to be legally bound, do hereby mutually
covenant and agree as follows:
1. Term of Agreement.
(a) Generally. Except as provided in Section 1(b) hereof, (i) this
Agreement shall be effective as of the date and year first above written, and
shall continue in effect through December 31, 2005, and (ii) commencing on
January 1, 2006, and each January 1 thereafter, this Agreement shall be
automatically extended for one additional year unless, not later than September
30th of the preceding year, either party to this Agreement gives notice to the
other that the Agreement shall not be extended under this Section 1(a);
provided, however, that no such notice by Bank shall be effective if prior to
the date of such notice (i) a "Potential Change in Control" shall have occurred
and the event giving rise thereto has not been terminated, abandoned or
rescinded or (ii) a "Change in Control" shall have occurred.
(b) Upon a Change in Control. If a Change in Control shall have occurred at
any time during the period in which this Agreement is effective, this Agreement
shall continue in effect for (i) the remainder of the month in which the Change
in Control occurred and (ii) a term of 12 months beyond the month in which such
Change in Control occurred (such entire period hereinafter referred to as the
"Protected Period").
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2. Definitions.
For purposes of this Agreement, the following terms shall have the
following meanings:
(a) A "Change in Control" shall be deemed to have occurred if, during the
term of this Agreement:
(i) any Person directly or indirectly or acting through one or more
other Persons owns, controls, or has power to vote 25% or more of the voting
common stock of Bank or a Controlling Person; or
(ii) any Person acquires or agrees to acquire all or substantially all
of the assets and business of Bank or a Controlling Person; or
(iii) any Person (A) is a party to a merger, consolidation, or any other
form of reorganization having substantially the same effect as a merger or
consolidation, with Bank or a Controlling Person and (B) immediately prior to
such transaction the Person had total assets as of the end of its most recent
fiscal year equal to or greater than 100% of the total assets of Bank or the
Controlling Person, as applicable, as of the end of its most recent fiscal year;
or
(iv) during any period of twenty-four (24) consecutive months,
individuals who at the beginning of such period constitute the Board of
Directors of Bank cease for any reason to constitute a majority of such Board,
unless the election, or the nomination for election of each new Director was
approved by a vote of at least two-thirds (2/3) of the Directors then still in
office who were Directors at the beginning of such period; or
(v) the Board of Directors of Bank, by vote of a majority of all the
Directors (excluding Executive if Executive is a Director), adopts a resolution
to the effect that a "Change in Control" has occurred for purposes of this
Agreement.
(b) A "Potential Change in Control" shall be deemed to have occurred if:
(i) Bank or any Controlling Person enters into a letter of intent,
memorandum of understanding, or definitive agreement providing for, or publicly
announces that it is considering, one or more transactions, the consummation of
which would result in the occurrence of a Change in Control;
(ii) any Person (including Bank) publicly announces an intention to take
or to consider taking actions which if consummated would constitute a Change in
Control; or
(iii) the Board adopts a resolution to the effect that, for purposes of
this Agreement, a Potential Change in Control has occurred.
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(c) A "Person" shall include a natural person, corporation, or other
entity. When two or more persons act as a partnership, limited partnership,
syndicate, or other group for the purpose of acquiring, holding, or disposing of
Bank common stock, such partnership, syndicate, or group shall be considered a
Person. Beneficial ownership shall be determined under the then current
provisions of Securities Exchange Act Rule 13d-3; 17 C.F.R. ss. 240.13d-3.
(d) A "Controlling Person" shall mean a Person who directly or indirectly
or acting through one or more other Persons owns, controls or has power to vote
50% or more of the voting common stock of Bank.
(e) Notwithstanding the definitions contained in Section 2 hereof, the
formation by Bank of a bank holding company that is approved by the Board and
the shareholders of Bank shall not constitute either a Change in Control or a
Potential Change in Control.
3. Duties Upon Potential Change-in-Control.
In the event that a Potential Change-in-Control shall occur while Executive
is employed by Bank, Executive agrees to remain in the employ of Bank, at the
request of Bank, and in such event Bank agrees to continue to employ Executive
in the offices then held by Executive with Bank and on the terms of employment
then in effect until the earlier to occur of the following: (i) the event giving
rise to the Potential Change-in-Control shall have been abandoned or terminated;
(ii) a Change-in-Control has occurred; or (iii) the Board of Directors of Bank
shall have determined by vote of at least two-thirds (2/3) of all the Directors
(excluding Executive if Executive is a Director) that Executive's obligations
under this Section 3 shall cease. During the period covered by the preceding
sentence, Executive shall render, to the best of Executive's ability, such
services as shall be required of Executive in order to explore and pursue fully
the Potential Change-in-Control in accordance with directions, policies and
determinations from time to time made by the Board of Directors of Bank and
communicated to Executive. During said period, Executive shall use reasonable
best efforts to fulfill Executive's responsibilities to Bank in the interests of
Bank and the shareholders of Bank and as reasonably requested of Executive for
such purposes. The employment of Executive pursuant to the first sentence of
this Section 3 may be terminated, without breach of this Agreement, either by
Bank for Cause, Disability or Material Breach, or by Executive for Good Reason
(as such terms are defined in Section 4(f) below).
4. Termination.
(a) Termination by Bank for Cause, by Executive Without Good Reason, or by
Reason of Death, Disability or Retirement. If during the Protected Period
Executive's employment by Bank is terminated by Bank for Cause, by Executive
without Good Reason, or because of Executive's death, Disability or Retirement,
Bank shall not be obligated to make any payments to Executive by reason of this
Agreement other than (i) payment of amounts otherwise accrued and owing but not
yet paid and (ii) any amounts payable under then-existing employee benefit
programs at the time such amounts are due.
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(b) Termination by Bank Without Cause or by Executive for Good Reason. If
during the Protected Period Executive's employment by Bank is terminated by Bank
without Cause or by Executive for Good Reason, subject to the provisions of
Section 6 hereof, Executive shall be entitled to the compensation and benefits
described in this Section 4(b). If Executive's employment by Bank is terminated
prior to a Change in Control at the request of a Person engaging in a
transaction or series of transactions that would result in a Change in Control,
the Protected Period shall commence upon the subsequent occurrence of a Change
in Control, Executive's actual termination shall be deemed a termination
occurring during the Protected Period and covered by this Section 4(b),
Executive's Date of Termination shall be deemed to have occurred immediately
following the Change in Control, and Notice of Termination shall be deemed to
have been given by Bank immediately prior to Executive's actual termination.
Executive's continued employment shall not constitute consent to, or a waiver of
rights with respect to, any circumstances constituting Good Reason hereunder.
The compensation and benefits provided under this Section 4(b) are as
follows:
(i) Bank shall pay Executive's full base salary through the Date of
Termination at the rate in effect at the time Notice of Termination is given, no
later than the fifth day following the Date of Termination, and Executive shall
receive all other amounts to which Executive is entitled under any benefit plan
of Bank, at the time such payments are due.
(ii) At the time specified in Section 4(d) hereof, Bank shall pay to
Executive, in lieu of amounts which may otherwise be payable to Executive under
any bonus plan for the year in which the Date of Termination occurs, an amount
in cash equal to Executive's annual target bonus that would be payable in cash
for such year multiplied by a fraction, (A) the numerator of which equals the
number of full or partial days in such annual performance period during which
Executive was employed by Bank and (B) the denominator of which is 365.
(iii) At the time specified in Section 4(d) hereof, Bank shall pay
Executive, in lieu of any further salary, bonus or severance payments for
periods subsequent to the Date of Termination, a lump sum amount in cash equal
to two times the sum of:
(A) the greater of (I) Executive's annual base salary in effect
immediately prior to the Change in Control of Bank or (II) Executive's annual
base salary in effect at the time Notice of Termination is given; and
(B) the greater of (I) Executive's annual target bonus for the year in
which the Change in Control occurs or, (II) if no such target bonus has yet been
determined for such year, Executive's annual target bonus actually earned by
Executive in the year immediately preceding the year in which the Change in
Control occurs.
(iv) Stock options or restricted stock held by Executive at the time of
Executive's termination, the vesting of which is service based, if not then
vested and exercisable, will become fully vested and exercisable at the date of
such termination, and, in other respects (including the period following
termination during which such options may be exercised), such options or
restricted stock shall be governed by the plans and programs and the agreements
and other documents pursuant to which such options or restricted stock were
granted.
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(v) Any performance objectives upon which the earning of
performance-based restricted stock or deferred stock awards, including
outstanding stock plan awards, and other long-term incentive awards is
conditioned shall be deemed to have been met at target level at the date of
termination, and restricted stock and deferred stock awards, including
outstanding stock plan awards, and other long-term incentive awards (to the
extent then or previously earned, in the case of performance-based awards) shall
become fully vested and non-forfeitable at the date of such termination, and, in
other respects, such awards shall be governed by the plans and programs and the
agreements and other documents pursuant to which such awards were granted.
(vi) For a 24month period following Executive's termination of
employment, Bank shall arrange to provide Executive with health insurance
benefits no less favorable than those which Executive was receiving immediately
prior to the Notice of Termination. If Executive elects after termination of
employment continued coverage under Bank's health plan in accordance with the
applicable provisions of the Consolidated Omnibus Reconciliation Act of 1985
("COBRA"), Executive shall continue to receive such individual and/or family
health benefits coverage as Executive was receiving at the time of termination
of employment with Bank with Executive paying the same portion of the cost of
such coverage as existed at the time of Executive's termination, for so long
during the continuation period as Executive elects to continue coverage and pays
Executive's portion of the costs of coverage.
(vii) (vii) At the time specified in Section 4(d) hereof, an amount
equal to the aggregate amounts that Bank would have contributed on behalf of
Executive under Bank's 401(k) Plan, or similar qualified plan if any such plan
shall be in effect, for a 24-month period following Executive's termination of
employment (plus estimated earnings thereon) had Executive continued in the
employ of Bank until the end of said period and made contributions under said
plan at a rate, as a percentage of salary, equal to the rate at which Executive
had made contributions to said plan in the plan year immediately preceding
Executive's termination.
(viii) At the time specified in Section 4(d) hereof, a cash allowance
for outplacement and job search activities (including, but not limited to,
office and secretarial expenses) not to exceed $10,000, provided that such cash
allowance shall apply only to those costs or obligations that are incurred by
Executive during the 24-month period following Executive's termination of
employment.
(ix) Bank shall not be obligated to continue any disability or
disability income insurance on behalf of Executive following the date of
Executive's termination of employment. To the extent permitted under any
contracts, programs or policies of such nature in effect at the time of such
termination, Executive may continue at Executive's sole cost and expense
coverage thereunder for a period of up to 24 months.
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(x) For a 24-month period following Executive's termination of
employment, Executive shall continue to receive such perquisites, other than
those specified in the preceding subparagraphs above, as Executive was receiving
at the time of termination of employment with, to the extent applicable, the
same cost sharing with Bank as was in effect immediately prior to Executive's
termination of employment.
(xi) Bank shall reimburse Executive for the amount of any reasonable
legal fees and expenses incurred by Executive in any successful action (whether
or not arbitration or litigation shall be involved) to obtain or enforce any
right or benefit provided to Executive by Bank hereunder or as confirmed or
acknowledged hereunder.
(c) Section 280G Limit. Notwithstanding any other provision of this
Agreement, in the event that any payment or benefit received or to be received
by Executive, whether payable pursuant to the terms of this Agreement or any
other plan, arrangement or agreement with Bank, its successors, or any person
affiliated with Bank ("Affiliate") within the meaning of Section 1504 of the
Internal Revenue Code of 1986, as amended (the "Code") (collectively "Total
Payments") would, in the determination of the independent certified public
accounting firm then retained by Bank (the "Tax Advisor"), not be deductible (in
whole or in part) by Bank, an affiliate of Bank or other person making such
payment or providing such benefit as a result of Section 280G of the Code, or
any successor to such Section, payments and benefits pursuant to this Agreement
shall be reduced until no portion of the Total Payments is not deductible as a
result of Section 280G of the Code, or payments and benefits pursuant to this
Agreement are reduced to zero. At the time of Executive's termination, Bank
shall obtain from the Tax Advisor an appraisal of the then current present value
of the covenants by Executive set forth in Sections 7 and 8 of this Agreement,
an amount of the total payments to be made to Executive under clause (ii) of
Section 4(b) equal to said amount shall be for all purposes treated as a payment
to Executive in consideration of such covenants and the remainder, if any, shall
be treated as supplemental wage payments to Executive. For purposes of the
limitation contained in this Section 4(c), (i) no portion of the Total Payments
the receipt of which Executive, in the determination of the Tax Advisor, shall
have effectively waived prior to the date which is fifteen (15) days following
termination of employment and prior to the earlier of the date of constructive
receipt and the date of payment thereof shall be taken into account; and (ii)
any reduction in the payments and benefits pursuant to Section 4(b) above shall
be made from the payments and benefits to be made pursuant to clauses (i)
through (xi) of Section 4(b) hereof, in such order as may be determined by
Executive, except to the extent that such payments and benefits, in the
determination of the Tax Advisor, are reasonable compensation within the meaning
of Section 280G of the Code. The determination of the Tax Advisor as to the
deductibility of the Total Payments shall be completed not later than forty-five
(45) days following Executive's termination of employment, and such
determination shall be communicated in writing to Bank, with a copy to
Executive, within said forty-five (45) day period. The determination of the Tax
Advisor as to the deductibility of the Total Payments shall be deemed conclusive
and binding on Bank and Executive and shall not be subject to the arbitration
provisions of this Agreement. Bank shall pay the fees and other costs of the Tax
Advisor hereunder. In the event that the independent certified public accounting
firm then retained by Bank is unable or declines to serve as Tax Advisor for
purposes of making the foregoing determinations, Bank shall appoint another
accounting firm of national reputation to serve as Tax Advisor.
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(d) Time of Payment. The payments provided for in clauses (ii), (iii),
(vii) and (viii) of Section 4(b) hereof shall be made not later than the
fifteenth day following the Date of Termination; provided, however, that if the
amount of such payments cannot be finally determined on or before such day, Bank
shall pay to Executive on such day an estimate, as determined in good faith by
Bank, of the minimum amount of such payments and shall pay the remainder of such
payments (together with interest at the rate provided in Section 1274(b)(2)(B)
of the Code) as soon as the amount thereof can be determined but in no event
later than the thirtieth day after the Date of Termination.
(e) Notice. During the Protected Period, any purported termination of
Executive's employment by Bank or by Executive shall be communicated by written
Notice of Termination to the other party hereto.
(f) Certain Definitions. Except as otherwise indicated in this Agreement,
all definitions in this Section 4(f) shall be applicable during the Protected
Period.
(i) Disability. "Disability" shall mean Executive's absence from the
full-time performance of Executive's duties with Bank for six consecutive months
as a result of Executive's incapacity due to physical or mental illness or
disability, and within 30 days after written Notice of Termination is thereafter
given Executive shall not have returned to the full-time performance of
Executive's duties.
(ii) Cause. "Cause" shall mean termination on account of (A) the willful
and continued failure by Executive to substantially perform Executive's duties
with Bank (other than any such failure resulting from Executive's incapacity due
to physical or mental illness or Disability or any failure after the issuance of
a Notice of Termination by Executive for Good Reason) which failure is
demonstrably and materially damaging to the financial condition or reputation of
Bank and/or its affiliates, and which failure continues more than 48 hours after
a written demand for substantial performance is delivered to Executive by the
Board, which demand specifically identifies the manner in which the Board
believes that Executive has not substantially performed Executive's duties or
(B) the willful engaging by Executive in conduct which is demonstrably and
materially injurious to Bank or its affiliates, monetarily or otherwise. No act,
or failure to act, on Executive's part shall be deemed "willful" unless done, or
omitted to be done, by Executive not in good faith and without reasonable belief
that Executive's action or omission was in the best interest of Bank.
Notwithstanding the foregoing, Executive shall not be deemed to have been
terminated for Cause unless and until there shall have been delivered to
Executive a copy of the resolution duly adopted by the affirmative vote of not
less than three-quarters (3/4) of the entire membership of the Board at a
meeting of the Board (after reasonable notice to Executive and an opportunity
for Executive, together with Executive's counsel, to be heard before the Board)
finding that, in the good faith opinion of the Board, Executive was guilty of
conduct set forth above in this Section 4(f)(ii) and specifying the particulars
thereof in detail.
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(iii) Good Reason. "Good Reason" shall mean, without Executive's express
written consent, the occurrence upon or after a Change in Control of any of the
following circumstances unless, in the case of subsections (A), (C), (F), (G)
and (H) hereof, such circumstances are fully corrected prior to the Date of
Termination specified in the Notice of Termination given in respect thereof:
(A) the assignment to Executive of any duties inconsistent with the
position in Bank that Executive held immediately prior to the Change in Control,
or an adverse alteration in the nature or status of Executive's responsibilities
or the conditions of Executive's employment from those in effect immediately
prior to such Change in Control (excluding inadvertent actions that are promptly
remedied);
(B) a reduction in Executive's annual base salary as in effect
immediately prior to the Change in Control;
(C) a reduction in Executive's perquisites as in effect immediately
prior to the Change in Control as the same may be increased from time to time
except for across-the-board perquisite reductions similarly affecting all senior
executives of Bank and all senior executives of any Person in control of Bank;
(D) the relocation of the principal place of Executive's employment to
a location more than 50 miles from Executive's principal place of employment
immediately prior to the Change in Control;
(E) the failure by Bank to pay to Executive any portion of Executive's
compensation or to pay to Executive any portion of an installment of deferred
compensation under any deferred compensation program of Bank within seven days
of the date such compensation is due;
(F) the failure by Bank to continue in effect any material
compensation or benefit plan in which Executive participated immediately prior
to the Change in Control, unless an equitable arrangement (embodied in an
ongoing substitute or alternative plan) has been made with respect to such plan,
or the failure by Bank to continue Executive's participation therein (or in such
substitute or alternative plan) on a basis not materially less favorable, both
in terms of the amounts of benefits provided and the level of Executive's
participation relative to other participants, as existed at the time of the
Change in Control;
(G) the failure of Bank to obtain a satisfactory agreement from any
successor to assume and agree to perform this Agreement, as contemplated in
Section 11 hereof; or
(H) any purported termination of Executive's employment that is not
effected pursuant to a Notice of Termination satisfying the requirements of
Section 4(f)(v) hereof, which purported termination shall not be effective for
purposes of this Agreement.
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(iv) Retirement. "Retirement" shall mean Executive's retirement from
Bank in accordance with the retirement policy of Bank, including early
retirement, generally applicable to its executives or in accordance with any
retirement arrangement with respect to Executive established by the Board with
the consent of Executive.
(v) Notice of Termination. "Notice of Termination" shall mean notice
indicating the specific termination provision in this Agreement relied upon and
setting forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of Executive's employment under the provision so
indicated.
(vi) Date of Termination. "Date of Termination" shall mean (A) if
Executive's employment is terminated for Disability, 30 days after Notice of
Termination is given (provided that Executive shall not have returned to the
full-time performance of Executive's duties during such 30-day period) or (B) if
Executive's employment is terminated for any other reason, the date specified in
the Notice of Termination (which, in the case of a termination for Cause, shall
not be less than 30 days from the date such Notice of Termination is given and,
in the case of a termination for Good Reason, shall not be less than 15 nor more
than 60 days from the date such Notice of Termination is given).
5. Mitigation.
So long as Executive shall not be in breach of any provisions of Sections 7
or 8, Executive shall not be required to mitigate the amount of payment provided
for under this Agreement by seeking other employment or otherwise, nor shall the
amount of payment or benefit provided for under this Agreement be reduced by any
compensation earned by Executive as the result of employment by another
employer, by retirement benefits, by offset against any amount claimed to be
owed by Executive to Bank, or otherwise.
6. Release.
As a condition of receiving payments or benefits provided for in this
Agreement, at the request of Bank, or its successor, Executive shall execute and
deliver for the benefit of Bank and any Controlling Person, a general release in
substantially the form set forth in Attachment A hereto, and such release shall
become effective in accordance with its terms. The failure or refusal of
Executive to sign such a release or the revocation of such a release shall cause
the termination of any and all obligations of Bank to make payments or provide
benefits hereunder, and the forfeiture of Executive's right to receive any such
payments and benefits. Executive acknowledge that Bank has advised Executive to
consult with an attorney prior to signing this Agreement and that Executive have
had an opportunity to do so.
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7. Confidential Information.
Executive understand that in the course of Executive's employment by Bank,
Executive will receive or have access to confidential information concerning the
business or purposes of Bank which Bank desires to protect. Such confidential
information shall be deemed to include, but not be limited to, Bank's customer
lists and information, and employee lists, including, if known, personnel
information and data. Executive agree that Executive will not, at any time
during the period ending two years after the Date of Termination, reveal to
anyone outside Bank or use for Executive's own benefit any such information
without specific written authorization by Bank. Executive further agree not to
use any such confidential information or trade secrets in competing with Bank at
any time during or in the two year period immediately following the Date of
Termination.
8. Non-Competition and Non-Disclosure; Non-Disparagement; Certain
Forfeitures.
(a) Non-Competition. In consideration for the compensation and benefits
provided under this Agreement, without the consent in writing of the Board of
Bank, Executive will not, at any time during the term of this Agreement and for
a period of two years following Executive's termination of employment during the
Protected Period, acting alone or in conjunction with others, directly or
indirectly (i) engage (either as owner, investor, partner, stockholder,
employer, employee, consultant, advisor, or director) in any business of any
bank, bank holding company, savings bank, savings and loan association, savings
and loan holding company, or other institution engaged in the business of
accepting deposits or making loans, or any direct or indirect subsidiary or
affiliate of any such entity, that maintains an office in any town in which Bank
maintains an office as of Executive's date of termination or in any town in
which Bank had plans to open an office within six months after Executive's date
of termination; (ii) induce any customers of Bank or any of its affiliates with
whom Executive had contacts or relationships, directly or indirectly, during and
within the scope of Executive's employment with Bank, to curtail or cancel their
business with Bank or any such affiliate; (iii) induce or attempt to influence
any employee of Bank or any affiliate to terminate employment; or (iv) solicit,
hire or retain as an employee or independent contractor, or assist any third
party in the solicitation, hire, or retention as an employee or independent
contractor, any person who during the previous twelve months was an employee of
Bank or any such affiliate; provided, however, that activities engaged in by or
on behalf of Bank are not restricted by this covenant. The provisions of clauses
(i), (ii), (iii), and (iv) above are separate and distinct commitments, each
independent of the other subparagraphs. It is agreed that the ownership of not
more than one percent (1%) of the equity securities of any company having
securities listed on an exchange or regularly traded in the over-the-counter
market shall not, of itself, be deemed inconsistent with clause (i) of this
Section 8(a).
(b) Non-Disparagement. Executive shall not, at any time during the term of
this Agreement or thereafter, make statements or representations, or otherwise
communicate, directly or indirectly, in writing, orally, or otherwise, or take
any action which may, directly or indirectly, disparage Bank or any of its
affiliates or their respective officers, directors, employees, advisors,
businesses or reputations. Notwithstanding the foregoing, nothing in this
Agreement shall preclude Executive from making truthful statements that are
required by applicable law, regulation or legal process.
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(c) Injunction. Executive hereby acknowledges that Executive's services are
unique and extraordinary, and are not readily replaceable, and hereby expressly
agrees that Bank, in enforcing the covenants contained in Sections 7 and 8
herein, in addition to any other remedies provided for herein or otherwise
available at law, shall be entitled in any court of equity having jurisdiction
to an injunction restraining him in the event of a breach, actual or threatened,
of the agreements and covenants contained in such Sections.
(d) Scope. The parties hereto believe that the restrictive covenants
contained in Sections 7 and 8 hereof are reasonable. However, if at any time it
shall be determined by any court of competent jurisdiction that these Sections
or any portion of them as written, are unenforceable because the restrictions
are unreasonable, the parties hereto agree that such portions as shall have been
determined to be unreasonably restrictive shall thereupon be deemed so amended
as to make such restrictions reasonable in the determination of such court, and
the said covenants, as so modified, shall be enforceable between the parties to
the same extent as if such amendments had been made prior to the date of any
alleged breach of said covenants. (e) Provision Not Applicable. The provisions
of this Section 8 shall not apply if Bank shall be prohibited under Section 14
below from making any payments to Executive pursuant to Section 4(b) above.
9. Right of Discharge.
Subject to the obligations to make the payments specified in Section 4(b),
and subject to the obligations of Bank under any employment agreement that may
exist between Bank and Executive, it is expressly agreed that, except as set
forth in Section 3 above, Bank shall have the right to discharge or terminate
Executive at any time and for any reason, or no reason.
10. Exclusivity.
It is understood and agreed that if any payments are due and made to
Executive under this Agreement then no payments will be due or required, and
Bank shall not in any respect be obligated to Executive, under any severance pay
plan, agreement, or arrangement that might otherwise be applicable to Executive,
or under or by reason of any employment severance pay or similar agreement
between Bank and Executive, including without limitation the Executive Severance
Pay Agreement executed on the same date as this Agreement.
11. Successors; Binding Agreement.
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(a) Bank shall require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of Bank, and in the case of an acquisition of Bank in
which the corporate existence of Bank continues, the ultimate parent company
following such acquisition, to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that Bank would be required
to perform it if no such succession had taken place. As used in this Agreement,
"Bank" shall mean Bank as hereinbefore defined and any successor to its business
and/or assets as aforesaid which assumes and agrees to perform this Agreement by
operation of law, or otherwise.
(b) This Agreement shall inure to the benefit of and be enforceable by
Executive and Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. In the
event of Executive's death following becoming entitled to payments hereunder but
prior to completion of such payments, all amounts otherwise payable to Executive
hereunder shall, unless otherwise provided herein, be paid in accordance with
the terms of this Agreement to Executive's devisee, legatee or other designee
or, if there is no such designee, to Executive's estate.
12. Notice.
Notices and all other communications provided for in this Agreement shall
be in writing and shall be deemed to have been duly given when (a) personally
delivered, (b) sent by Federal Express or other similar overnight service or (c)
mailed by United States certified or registered mail, return receipt requested,
postage prepaid, addressed to the respective addresses set forth below, or to
such other address as either party may have furnished to the other in writing in
accordance herewith, except that notice of change of address shall be effective
only upon receipt. In the case of Federal Express or other similar overnight
service, such notice or advice shall be effective when sent, and, in the cases
of certified or registered mail, shall be effective two days after deposit into
the mail by delivery to the U.S. Post Office.
If to Executive, to:
Xxxxx X. Xxxxxxx
00 Xxxxxx Xxxx
Xxxxxxxx, XX 00000
If to Bank, to:
Simsbury Bank and Trust Company
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: President and Chief Executive Officer
13. Dispute Resolution.
(a) Negotiation. Bank and Executive shall attempt in good faith to resolve
any dispute arising out of or relating to this Agreement promptly by negotiation
between the designated representative of the Board of Bank and Executive. Any
party may give the other party written notice of any dispute in accordance with
the notice procedures set forth in Section 12. Within 15 days after delivery of
the notice, the receiving party shall submit to the other, in accordance with
the notice procedures set forth in Section 12, a written response. The notice
and response shall include a statement of that party's position and summary of
arguments supporting that position. Within 30 days after delivery of the initial
notice, the parties shall meet at a mutually acceptable time and place, and
thereafter as often as they reasonably deem necessary, to attempt to resolve the
dispute. All negotiations pursuant to this clause are confidential and shall be
treated as compromise and settlement negotiations for purposes of applicable
rules of evidence.
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(b) Mediation. If the dispute has not been resolved by negotiation as
provided herein within 45 days after delivery of the initial notice of
negotiation, or if the parties failed to meet within 30 days after delivery, the
parties shall endeavor to settle the dispute by mediation under the CPR
Mediation Procedure then currently in effect; provided, however, that if one
party fails to participate in the negotiation as provided herein, the other
party may initiate mediation prior to the expiration of the 45 days. Unless
otherwise agreed, the parties will select a mediator from the CPR Panels of
Distinguished Neutrals.
(c) Arbitration. Any dispute arising under or in connection with this
Agreement which has not been resolved by mediation as provided herein within 45
days after initiation of the mediation procedure, shall be finally resolved by
arbitration in accordance with the CPR Rules for Non-Administered Arbitration
then currently in effect, by three independent and impartial arbitrators, of
whom each party shall designate one and the two so designated shall designate
the third; provided, however, that if one party fails to participate in either
the negotiation or mediation as agreed herein, the other party may commence
arbitration prior to the expiration of the time periods set forth above. The
arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C.
ss.ss.1-16, and judgment upon the award rendered by the arbitrators may be
entered by any court having jurisdiction thereof. The place of arbitration shall
be Hartford, Connecticut. For purposes of entering any judgment upon an award
rendered by the arbitrators, Bank and Executive hereby consent to the
jurisdiction of any or all of the following courts: (i) the United States
District Court for the District of Connecticut, (ii) any of the courts of the
State of Connecticut, or (iii) any other court having jurisdiction. Bank and
Executive hereby agree that a judgment upon an award rendered by the arbitrators
may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Subject to subsection (e) of this Section 13, Bank shall
bear all costs and expenses arising in connection with any arbitration
proceeding pursuant to this Section 13(c). Notwithstanding any provision in this
Section 13(c), Executive shall be entitled to seek specific performance of
Executive's right to be paid during the pendency of any dispute or controversy
arising under or in connection with this Agreement.
(d) Interest on Unpaid Amounts. Any amount which has become payable
pursuant to the terms of this Agreement or any decision by arbitrators or
judgment by a court of law pursuant to this Section 13 but which has not been
timely paid shall bear interest at the prime rate as quoted by Bank at the time
such amount first becomes payable.
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(e) Costs of Proceedings. Bank shall pay all costs and expenses, including
all attorneys' fees and disbursements, of Bank and, at least monthly, Executive,
in connection with any proceedings undertaken pursuant to this Section 13,
whether or not instituted by Bank, or Executive, relating to the interpretation
or enforcement of any provision of this Agreement; provided that if Executive
instituted the proceeding and a finding is entered that Executive instituted the
proceeding in bad faith, Executive shall pay all of Executive's costs and
expenses, including attorneys' fees and disbursements.
14. Regulatory Limitation.
Notwithstanding any other provision of this Agreement, Bank shall not be
obligated to make, and Executive shall have no right to receive, any payment,
benefit or amount under this Agreement which would violate any law, regulation
or regulatory order applicable to Bank or its parent at the time such payment,
benefit or amount is due, including, without limitation, Section 1828(k)(1) of
Title 12 of the United States Code and any regulation or order thereunder of the
Federal Deposit Insurance Corporation ("Prohibited Payment"). If and to the
extent Bank shall at a later date be relieved of the restriction on its ability
to make any Prohibited Payment, then at such time Bank shall promptly make
payment of any such amounts to Executive.
15. Miscellaneous.
No provision of this Agreement may be modified, waived or discharged unless
such waiver, modification or discharge is agreed to in writing and signed by
Executive and such officer as may be designated by the Board. No waiver by
either party hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the time or at any prior or subsequent time. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws of the State of Connecticut without regard to its conflicts of law
principles. All references to sections of the Exchange Act or the Code shall be
deemed also to refer to any successor provisions to such sections. Any payments
provided for hereunder shall be paid net of any applicable withholding required
under federal, state or local law. The obligations of Bank under this Agreement
shall survive the expiration of this Agreement to the extent necessary to give
effect to this Agreement.
16. Validity.
The invalidity or unenforceability of any provision of this Agreement shall
not affect the validity or enforceability of any other provision of this
Agreement, which shall remain in full force and effect.
17. Counterparts.
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This Agreement may be executed in counterparts, each of which shall be
deemed to be an original but all of which together will constitute one and the
same instrument.
18. Entire Agreement.
This Agreement sets forth the entire agreement of the parties hereto in
respect of the subject matter contained herein and during the term of this
Agreement supersedes the provisions of all prior agreements, promises,
covenants, arrangements, communications, representations or warranties, whether
oral or written, by any officer, employee or representative of any party hereof
with respect to the subject matter contained herein. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not expressly set
forth in this Agreement. Notwithstanding anything to the contrary in this
Agreement, the procedural provisions of this Agreement shall apply to all
benefits payable as a result of a Change in Control (or other change in control)
under any employee benefit plan, agreement, program, policy or arrangement of
Bank.
IN WITNESS WHEREOF, Bank has caused this Agreement to be executed by a duly
authorized officer, and Executive has executed this Agreement, as of the 23rd
day of December, 2005.
SIMSBURY BANK AND TRUST COMPANY
By
----------------------------
Xxxxxx X. Xxxxx
Its President and Chief Executive Officer
EXECUTIVE
-------------------------------
Xxxxx X. Xxxxxxx
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ATTACHMENT A
RELEASE
We advise Executive to consult an attorney before Executive sign this
Release. Executive have until the date which is seven (7) days after the Release
is signed and returned to Simsbury Bank and Trust Company ("Bank") to change
Executive's mind and revoke this Release. Executive's Release shall not become
effective or enforceable until after that date.
In consideration for the benefits provided under Executive's Change in
Control Severance Agreement with Bank effective [ ] (the "Agreement"), and more
specifically enumerated in Exhibit 1 hereto, by Executive's signature below,
Executive, for and on behalf of Executive, Executive's heirs, executors, agents,
representatives, successors and assigns, hereby release and forever discharge
Bank its past and present parent corporations, subsidiaries, divisions,
subdivisions, affiliates and related companies (collectively, the "Company") and
the Company's past, present and future agents, directors, officers, employees,
representatives, successors and assigns (hereinafter "those associated with the
Company") with respect to any and all claims, demands, actions and liabilities,
whether in law or equity, which Executive may have against the Company or those
associated with the Company of whatever kind, including but not limited to those
arising out of Executive's employment with the Company or the termination of
that employment. Executive agree that this release covers, but is not limited
to, claims arising under the Age Discrimination in Employment Act of 1967, 29
U.S.C. ss. 621 et seq., Title VII of the Civil Rights Act of 1964, 42 U.S.C. ss.
2000e et seq., the Americans with Disabilities Act of 1990, 42 U.S.C. ss. 12101
et seq., the Fair Labor Standards Act, 29 U.S.C. ss. 201 et seq., the Employee
Retirement Income Security Act of 1974, 29 U.S.C. ss. 1001 et seq., the
Connecticut Fair Employment Practices Act, C.G.S. ss. 46a-51 et seq., and any
other local, state or federal law, regulation or order dealing with
discrimination in employment on the basis of sex, race, color, national origin,
veteran status, marital status, religion, disability, handicap, or age.
Executive also agree that this release includes claims based on wrongful
termination of employment, breach of contract (express or implied), tort, or
claims otherwise related to Executive's employment or termination of employment
with the Company and any claim for attorneys' fees, expenses or costs of
litigation.
This Release covers all claims based on any facts or events, whether known
or unknown by Executive, that occurred on or before the date of this Release.
Except to enforce this Release, Executive agree that Executive will never
commence, prosecute, or cause to be commenced or prosecuted any lawsuit or
proceeding of any kind against the Company or those associated with the Company
in any forum and agree to withdraw with prejudice all complaints or charges, if
any, that Executive have filed against the Company or those associated with the
Company.
Anything in this Release to the contrary notwithstanding, this Release does
not include a release of: (i) Executive's rights under the Agreement or
Executive's right to enforce the Agreement; (ii) any rights Executive may have
to indemnification under any agreement, law, Company organizational document or
policy, or otherwise; (iii) except as expressly provided in the Agreement, any
rights Executive may have to benefits under the Company's benefit plans; or (iv)
Executive's right to enforce this Release.
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By signing this Release, Executive further agree as follows:
i. Executive has read this Release carefully and fully understand its
terms;
ii. Executive has had at least twenty-one (21) days to consider the terms
of the Release;
iii. Executive has seven (7) days from the date Executive signs this
Release to revoke it by written notification to the Company. After this seven
(7) day period, this Release is final and binding and may not be revoked;
iv. Executive has been advised to seek legal counsel and have had an
opportunity to do so;
v. Executive would not otherwise be entitled to the benefits provided under
Executive's Agreement had Executive not agreed to execute this Release; and
vi. Executive's agreement to the terms set forth above is voluntary.
IN WITNESS WHEREOF, Executive has executed and delivered this release at
Simsbury, Connecticut on the date indicated below.
Name:______________________________________
Signature:_________________________________ Date:
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